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2005 DIGILAW 277 (HP)

CHHABU RAM v. STATE OF H. P.

2005-08-09

SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—This is an appeal by a man, more than 60 years of age, who has been convicted of and sentenced for committing rape on his own minor grand-daughter (sons daughter). Grievance of the appellant is that the conviction is not justified in view of the contradictions, discrepancies and inconsistencies in the evidence of the prosecution and long delay in the lodging of the report. 2. The prosecutrix hails from a village in Tehsil Rampur. Her date of birth is 5.12.1989. Her parents often remain away from the village to work as labourers in forests located in far off areas. In June, 2003 also her parents were away from the house as they had gone to Chopal side to work as labourers in a forest. In their absence, the appellant is alleged to have committed rape on the prosecutrix on 29.6.2003, when she had gone to a forest, adjacent to her village, to graze cattle. The appellant is also alleged to have gone to graze his cattle in the same forest on the aforesaid day. Thereafter, the appellant is alleged to have committed sexual intercourse with the prosecutrix on four more occasions. In September, 2003, the mother of the prosecutrix returned from Chopal side. She asked the prosecutrix to take the cattle to the forest for grazing, in the company of the appellant, her grand-father. It was a Sunday and the date was 14th. The prosecutrix refused to go with the appellant and when her mother insisted she (the prosecutrix) broke down and narrated to her mother that she had already been raped five times by the appellant. The father of the prosecutrix was not at home those days. He returned on 17.9.2003. His wife, i.e. the mother of the prosecutrix, apprised him of what the prosecutrix had told her. On the next following day, i.e. September 18, 2003, the prosecutrix was taken to the Police Station, where she lodged the FIR. The prosecutrix was got medically examined and it was noticed that she was carrying 16 weeks pregnancy. The appellant was arrested, He too was got medically examined. The doctor did not find anything suggesting that he was not capable of committing sexual intercourse. The prosecutrix was got medically examined and it was noticed that she was carrying 16 weeks pregnancy. The appellant was arrested, He too was got medically examined. The doctor did not find anything suggesting that he was not capable of committing sexual intercourse. The police collected the evidence in the form of entries in the Panchayat record and school admission record, pertaining to the date of birth of the prosecutrix and also recorded the statements of material witnesses, including the parents of the prosecutrix, and challaned the appellant. 3. The trial Court charge-sheeted the appellant with the offence, under Section 376 of the Indian Penal Code. The appellant, when asked whether he pleaded guilty to the charge or claimed trial, he replied in the following words:— “I did not commit rape upon the prosecutrix. On the contrary, she forced me to commit sexual intercourse with her and was under influence of Devta at the time of the incident and claim trial in the present case." 4. This being not a confession in clear-cut terms, the learned trial Court proceeded to try the appellant for the aforesaid offence. Prosecution examined 12 witnesses, including the prosecutrix, who appeared as PW-1, her mother Ganu Devi (PW-2), her father Shyam Lai (PW-4) Dr. Rajeshvi Ajay (PW-5), who conducted medicolegal examination of the appellant, Dr. Bharti Azad (PW-7), who conducted the medicolegal examination of the prosecutrix, Tara Chand (PW-8), Secretary, Gram Panchayat, who proved the birth certificate, Suresh Kumar (PW-9), a teacher from the school where the prosecutrix had been studying and who proved the birth certificate, as per entry in the admission record and Inspector Hukam Singh (PW-12), Investigating Officer. 5. The appellant in his statement, under Section 313 of the Code of Criminal Procedure, denied having committed sexual intercourse with the prosecutrix and alleged that he had four sons, including the father of the prosecutrix and had partitioned his property among his four sons, including the father of the prosecutrix, and retained a portion of his landed property for himself and his wife, but the father of the prosecutrix started insisting that that portion be also given to him and when he refused, he falsely implicated him in this case. To prove the plea, the appellant examined one of his other three sons, namely Maina Ram (DW-1). 6. To prove the plea, the appellant examined one of his other three sons, namely Maina Ram (DW-1). 6. The learned Sessions Judge held the appellant guilty of the offence of rape and accordingly convicted and sentenced him as aforesaid. 7. I have perused the record and heard the learned counsel for the appellant as also the learned Deputy Advocate General for the respondent—State. 8. The prosecutrix, in her deposition as PW-1, stated in no uncertain terms, that when her parents were away to Chopal side, in connection with earning their livelihood, the appellant committed rape on her in a forest, where she had gone to graze her cattle and the appellant too had gone there to graze his own cattle. She stated that the appellant committed rape on her on four more occasions subsequently. She also stated that when her mother returned and once asked her to accompany the appellant to the forest to graze cattle and she refused to go with him, her mother enquired why she was reluctant to go with the appellant, she told her that she had been raped five times by the appellant. She proved FIR Ext. PW-l/A, which she lodged on 18.9.2003. In the cross-examination, she stated that as a result of sexual intercourse committed with her by the appellant, she had delivered a child, who died within a month. Her testimony is corroborated by her mother (PW-2) Ganu Devi, who stated that when she returned from Chopal and one day asked the prosecutrix to go with her grand-father (appellant) to the forest to graze her cattle but she refused to go with him, she enquired from her (the prosecutrix) the reason upon which she (the prosecutrix) told her that she had been subjected to sexual intercourse on five occasions by the appellant. She stated that thereafter the matter was reported to the police by the prosecutrix and she accompanied her to the Police Station. She stated that the prosecutrix was aged 15 when the crime was committed. 9. Shyam Lal (PW-4), the father of the prosecutrix, testified that when he returned from Chopal, he was informed by his wife that their daughter had been raped by the appellant. 10. PW-7 Dr. She stated that the prosecutrix was aged 15 when the crime was committed. 9. Shyam Lal (PW-4), the father of the prosecutrix, testified that when he returned from Chopal, he was informed by his wife that their daughter had been raped by the appellant. 10. PW-7 Dr. Bharti Azad, who conducted the medical examination of the prosecutrix, testified that on examining the prosecutrix, she found that the height of her uterus was equal to 16 weeks and foetal parts were palpable. She also stated that the hymen was ruptured with old healed tears and vagina admitted two fingers easily. In the cross-examination, she stated that the girl told that Chhabu Ram (the appellant) was responsible for the pregnancy. 11. PW-8 Tara Chand, Secretary, Gram Panchayat, proved a certificate Ext. PW-8/A, based on an entry in the Pariwar Register. As per the certificate and the entry in the Pariwar Register, date of birth of the prosecutrix is 5.12.1989. 12. PW-9 Suresh Kumar, a teacher from the school where the prosecutrix had been studying, also proved her birth certificate Ext. PW9/A, based on an entry in the Register of admission. As per this certificate also, the date of birth of the prosecutrix is 5.12.1989. 13. The above discussed evidence, when seen in the light of the admission, made by the appellant in the statement, recorded after framing of the charge, in my view establishes the charge against the appellant to the hilt. As already noticed, while summing up the facts, the appellant stated in the statement recorded at the time when the charge was read out and explained to him that the prosecutrix had forced him to commit sexual intercourse with her and at that time he was under the influence of Devta (the village deity). Even independent of the aforesaid admission, the charge is established beyond reasonable doubt against the appellant by the above discussed evidence of the prosecution. 14. The statement made by the appellant at the time when the charge was read out and explained to him, has been used as admission inspite of the appellants having claimed therein that he was forced to have the sexual intercourse, because this explanation, which appears to be exculpatory, is in the first instance not true, is evidence here-in-above Is contrary to the plea. And, secondly, even if true, it does not take away his act out of the purview of Section 376 of the Indian Penal Code, because the prosecutrix was below 16 years of age at the time of the commission of the crime. Therefore, this part of his statement cannot be said to be exculpatory and consequently, it cannot be said that the statement has not been taken into account as a whole and exculpatory part of it has been excluded. 15. The age of the prosecutrix at the time of commission of the crime was less than 14 years. That means even if she had forced the appellant, as claimed by him, to have sexual intercourse, the appellant cannot escape conviction and punishment. Admittedly, the prosecutrix is the daughter-in-law (sons daughter) of the appellant. The appellant must have been knowing that she was minor. It is a matter of common knowledge that a male cannot be forced, particularly by his own sons daughter, to have sexual inter course, because without arousal a man cannot perform sexual inter course and arousal can usually not be there by use of force and that too when the person of opposite sex is ones own sons daughter. 16. The plea taken, during the course of the trial and in the statement, under Section 313 of the Code of Criminal Procedure, that the appellant had been falsely implicated as he did not agree to the unlawful and unreasonable demand of the father of the prosecutrix to transfer his share of the property to him, is an after-thought. Also, the plea is improbable and unbelievable. A man cannot think of blackmailing his father for obtaining 3-4 Bighas of land, retained by the father in a partition, by putting his own daughters honour at stake. The facts that the prosecutrix was carrying pregnancy, when her medicolegal examination was conducted and her hymen was found ruptured, establish that she had been subjected to sexual intercourse. 17. In the light of the above discussed evidence, I find no merit in the appeal. The same is, therefore, dismissed.